Where are all the federal judges? Why 90 empty seats threaten American justice
Partisan play – especially Republican obstinacy – has blocked judicial nominations at a record rate. President Obama and the 112th Senate must now quickly nominate and confirm judges for more than 90 lower court vacancies. The swift and fair delivery of justice hangs in the balance.
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Most troubling has been Republican refusal to hold votes on uncontroversial, well-qualified nominees, inaction which contravenes a venerable Senate tradition. Republicans' obstruction was responsible for Obama having the lowest percentage of confirmed lower court nominees (as of mid-December) of any president over the past 30 years.Skip to next paragraph
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In the Year-End Report on the Federal Judiciary, Chief Justice John Roberts decried each political party’s blocking of judicial nominations, saying that “this has created acute difficulties for some judicial districts, [which] have been burdened with extraordinary caseloads.” As will be the case for many decisions that the new Congress faces, confirming judicial nominees will require both parties to work together. Mr. Roberts warned that an “urgent need for the political branches to find a long-term solution to this recurring problem” remains.
Vacancies in critical courts
The 179 appeals court judgeships – 16 of which are open – are critical, as the 12 regional circuits are the courts of last resort in their regions for 99 percent of the appeals. The crucial Second Circuit has vacancies in 2 of 13 judgeships. To date, Obama has tapped 25 excellent nominees, and he should continue cooperating with Mr. Leahy, Senator Majority Leader Harry Reid – who arranges floor debates and votes, and their Republican analogues to facilitate confirmation. The Senate approved 16 of the nominees, so Obama must now promptly re-nominate the nine prospects who received no floor action and tap nominees for the other seven vacancies. The chamber must then expeditiously confirm the nominees.
The 679 district judgeships – 77 of which are empty – are also vital because district judges conduct federal trials and determine the facts, while appellate courts sustain on average 80 percent of appeals from these judges' decisions. The Central District of Illinois has vacancies in 3 of 4 authorized judgeships. The Northern District of Georgia has openings in 4 of 11 judgeships. In this case, Obama has nominated 78 very capable people. The Senate has confirmed 44, so Obama must rapidly re-nominate the 34 candidates who secured no floor votes and tender nominees for the remaining 45 openings. And then the Senate must promptly approve these nominees.
The vacancies in those federal appeals and district court judgeships erode swift, economical, and fair case resolution. Heeding Chief Justice Roberts’ admonition, President Obama and the new Senate must put aside partisan division, and act with urgency and efficiency to swiftly nominate and confirm qualified judges for these many open seats.